This article will very briefly discuss the recent and very controversial case of Nelson Mandela Foundation Trust and Another v AfriForum NPC and Others. This matter came before the North Gauteng High Court after the Nelson Mandela Foundation launched an application seeking an order declaring that the Old South African Flag of 1928 (hereinafter referred to as the “Old Flag”) amounts to hate speech, unfair discrimination and harassment.

The application was opposed by AfriForum who firstly argued that only words can amount to hate speech, in terms of South African Law, and not symbols such as the Old Flag. The Court rejected this argument and stated that section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (“the Act”), which deals with prohibited hate speech and makes reference to only words, “must be interpreted to be wide enough to include [the] expression of ideas such as the waving of a flag.”

AfriForum furthermore argued that displaying the Old Flag was protected under the right of freedom of speech as recognised in section 16 of the South African Constitution. The Court rejected this argument by relying on section 16(2)(c) of the Constitution, which states that the right of freedom of expression does not protect “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes an incitement to cause harm.” The Court concluded that section 16(2)(c) was applicable in this instance due to its finding that the gratuitous display of the Old Flag is indeed hate speech.

Deputy Judge President Phineas Mojapelo, in finding that the gratuitous display of the Old Flag amounts to hate speech, stated that “[t]he display of the Old Flag is extremely hurtful and dehumanizing to those who suffered under apartheid.” It is clear from this statement that the Court placed great emphasis on the historical context of the Old Flag. The Court continued by stating that “[t]he message generally communicated by displays of the Old Flag indicates a symbol of support for and promotion of the racist ideologies espoused under the apartheid regime.” The Court thus concluded that the gratuitous display of the Old Flag can cause harm to black South Africans stating that the Old Flag “promotes hatred and harm towards those who suffered, and continue to suffer, as a result of… [the apartheid] regime”.

It is important to note that the judgment does not amount to a total ban of the Old Flag. Firstly, the Court granted a declaratory. One can thus be challenged in Court if one displays the Old Flag in a gratuitous manner as it has now been declared to be hate speech. However, displaying the Old Flag will not amount to contempt of court since the order granted was not a prohibitory interdict. This is evident from the fact that the High Court found that Ernst Roets, deputy CEO of AfriForum, was not in contempt of court after having tweeted shortly after the judgment was handed down, a photo of the Old Flag with the title “Did I just commit hate speech?” Secondly, the Old Flag may still, in terms of the judgment and section 12 of the Act, be displayed for purposes of genuine artistic, academic or journalistic expression that is in the public interest.

Lastly, it is important to note that you can commit hate speech even in private spaces. The Court stated in this regard that there is hardly any private space in modern-day South Africa to which only one specific race has access to. The Court stated, whilst considering the display of the Old Flag in public spaces versus private spaces, that “displaying the Old Flag in private spaces like homes and schools is equally unacceptable, offensive and hurtful, as black people are invariably employed and exposed in other ways to such spaces.”